Frazer v. McGowan

• Decision Date: 07 January 1986
• Citation: 502 A.2d 905,198 Conn. 243
• Parties: Tod W. FRAZER III et al. v. John McGOWAN et al.
• Court: Connecticut Supreme Court

Page 905

502 A.2d 905

198 Conn. 243

Tod W. FRAZER III et al. v. John McGOWAN et al.

Supreme Court of Connecticut.

Argued Nov. 13, 1985.

Decided Jan. 7, 1986.

Donald R. Beebe, Norwich, with whom were Janis M. Webster, Wallingford, and, on brief, Frederick J. Miano, for appellants (plaintiffs).

Philip V. Chabot, Hamden for appellee (defendant Westerly Hosp.).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

PETERS, Chief Justice.

The sole issue on this appeal is a determination of the circumstances under which a Connecticut court may exercise personal jurisdiction over a hospital that is located in Rhode Island. The named plaintiff, Tod W. Frazer III, ¹ brought suit in Connecticut Superior Court against John McGowan, M.D., and Westerly Hospital, alleging medical malpractice and negligence. On June 29, 1983, after a hearing, the trial court granted the hospital's motion to dismiss for lack of personal jurisdiction. ² The plaintiffs appeal from this judgment. We find error.

The trial court's memorandum of decision and the record reveal the following undisputed facts. In October, 1979, the named plaintiff, a twelve year old resident of Ledyard, Connecticut, began seeing McGowan in his Mystic, Connecticut, office for the treatment of an allergy. During the following ten months, the plaintiff visited McGowan's office regularly. McGowan was licensed to practice medicine both in Connecticut and in Rhode Island and maintained offices in both states. He was a member of the medical staff with full admitting privileges at Westerly Hospital in Rhode Island. Westerly Hospital was the only hospital at which McGowan enjoyed admitting privileges. All of McGowan's patients who required hospitalization were sent to Westerly Hospital and Westerly Hospital accepted every patient whom McGowan wanted to have admitted. In the course of treating the named plaintiff, McGowan had him admitted to Westerly Hospital on three occasions. This cause of action arises from conduct of McGowan and the hospital staff that allegedly occurred during the named plaintiff's third visit to Westerly Hospital.

Westerly Hospital, located near the Connecticut border in Westerly, Rhode Island, is a Rhode Island nonstock corporation licensed to operate as a hospital in Rhode Island. The hospital maintains no treatment facilities in Connecticut. It is not registered to do business in this state as a foreign corporation nor is it licensed by the Connecticut department of health. Nonetheless, the hospital has significant contacts with the state of Connecticut. Thirteen of the physicians with admitting privileges at the hospital had offices in Connecticut at the time of the commencement of this suit. The hospital knew that eleven of them had offices only in Connecticut. Eight of the Connecticut physicians were members of the hospital's courtesy staff and had limited admitting privileges; five, including McGowan, were members of the medical staff and had full admitting privileges. From 1978 until 1981, the hospital maintained a listing in the yellow pages of the New London, Connecticut, telephone directory. During the twelve month period ending in July, 1980, 35.3 percent of the patients discharged by Westerly Hospital were residents of the state of Connecticut.

In its decision granting the hospital's motion to dismiss for lack of personal jurisdiction in Connecticut over this foreign corporation, the trial court correctly recognized that it was faced with a two-part inquiry. Its first obligation was to decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the hospital. If the statutory requirements were met, its second obligation was then to decide whether the exercise of jurisdiction over the hospital would violate constitutional principles of due process. United States Trust Co. v. Bohart, 197 Conn. 34, 38-39, 495 A.2d 1034 (1985); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983); Zartolas v. Nisenfeld, 184 Conn. 471, 473-78, 440 A.2d 179 (1981). The trial court did not make the second of these inquiries because it held that the long-arm statute governing nonstock corporations, General Statutes § 33-519(c), ³ did not reach the defendant hospital. The court addressed its attention to two subsections of § 33-519(c). It concluded that jurisdiction did not lie under § 33-519(c)(1) because there was no contract made in Connecticut between the plaintiffs and the defendant hospital. It also held that jurisdiction did not lie under § 33-519(c)(2) because it found there was not the type of repeated solicitation required by the statute. It assigned no evidentiary value to the hospital's listing in the yellow pages of the New London telephone directory because it held that solicitation could only support jurisdiction when there was a causal connection between the solicitation and the plaintiff's cause of action. It found inconclusive the referral relationship between the admitting physicians and the defendant hospital because the physicians were not acting as agents for the hospital.

On appeal, the plaintiffs argue that the trial court erred in concluding that the defendant hospital did not fall within the jurisdictional confines of § 33-519(c). The plaintiffs maintain that the court erred in the standard it applied in its interpretation of § 33-519(c) and in its conclusion that the plaintiffs had demonstrated neither a contract basis nor a solicitation basis for application of the long-arm statute. These claims of error do not challenge the trial court's findings of fact, as to which there was no dispute, but rather put into issue the court's conclusions of law.

The first issue that we must consider is what the standards are that govern the interpretation of § 33-519(c). As the parties apparently agree, this long-arm statute, which governs nonstock corporations, closely parallels General Statutes § 33-411(c), ⁴ governing stock corporations. In Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. at 253-54, 460 A.2d 481, we recently held that the latter subsection "confers jurisdiction over designated causes of action without regard to whether a foreign corporation transacts business in Connecticut and without regard to a causal connection between the plaintiff's cause of action and the defendant's presence in this state. [The language of § 33-411(c) requires] inquiry not only into the various elements of the plaintiff's cause of action, spelled out in the various subparts of subsection (c), but also into the totality of contacts which the defendant may have with the forum. The totality of a defendant's contacts may include activities which ... do not constitute 'transacting business' in this state ... such as ownership of property in this state and solicitation of business here...." In effect we determined, relying on contrasting language in § 33-411(b), that in enacting § 33-411(c), which subjects foreign corporations to suit here "whether or not such foreign corporation is transacting or has transacted business in this state," the legislature intended to exercise its full constitutional power over foreign corporations in cases falling within one of the designated causes of action. "Under [§ 33-411(c) ], consistent with the constitutional demands of due process, it is the totality of the defendant's conduct and connection with this state that must be considered, on a case by case basis, to determine whether the defendant could reasonably have anticipated being haled into court here. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 92, 97-98, 98 S.Ct. 1690, 1699-1700, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 1238, 1239, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983); See 1 Restatement (Second), Judgments § 5, comment b." Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. at 255, 460 A.2d 481.

Applying the principles established in Lombard to this case, we conclude that the trial court was mistaken in requiring a causal connection between evidence of solicitation and the plaintiff's cause of action. The relevant language of § 33-519(c) is identical to that of § 33-411(c) except that, in accordance with its subject matter, the nonstock corporation long-arm statute speaks of "whether or not such foreign corporation is conducting or has conducted affairs in this state." ⁵ We can surmise no basis in the language of the two long-arm statutes for a distinction on this issue between stock corporations and nonstock corporations, and the parties have suggested none. If the plaintiff's cause of action alleges conduct falling within one of the four statutorily designated classes, the court must examine the totality of the defendant's contacts with the state of Connecticut to determine whether personal jurisdiction over the defendant is proper.

The trial court's application of a standard more stringent than the statute requires necessarily colored its conclusion that the plaintiffs had failed to establish a statutory nexus for in personam jurisdiction in Connecticut over the defendant hospital. We must therefore decide whether, on the undisputed facts disclosed on the record, the plaintiffs have proven their claim that § 33-519(c) permits them to sue the defendant in this state.

We turn first to the plaintiffs' claim that solicitation by the hospital in Connecticut confers jurisdiction upon Connecticut courts. Section 33-519(c)(2) confers such jurisdiction, "whether or not such foreign corporation is conducting or has conducted affairs in this state on any cause of action arising as follows ... (2) out of any...